Relates to chemical security

Section 2 sets forth an immediate effective date.

Existing law

Section 714, subdivision 1 authorizes the Commissioner of DHSES to undertake a review and analysis of measures taken by chemical facility owners and operators to secure the critical infrastructure related to such facilities.

Subdivision 2 requires DHSES to prepare a list that identifies certain toxic or hazardous substances and promulgate such list in regulation in consultation with the Departments of Environmental Conservation and Health and representatives of the chemical industry. Upon completion of the list, DHSES is required to identify facilities, except liquefied petroleum gas facilities, that pose a risk to the public should there be an unauthorized release.

Legislative history

Section 714 was enacted pursuant to Part C of Chapter 1 of the Laws of 2004

Statement in support

Prior to the adoption of federal regulations, individual states were left to address chemical facility security on an ad hoc basis and in most states did not address it at all. In 2004, New York State enacted section 714 to create a hazardous substance storage facility security program to address chemical security issues within the State and, at the time, there were very few programs after which to model the program. In 2006, during DHSES process of establishing a chemical list as required by section 714, the U.S. Department of Homeland Security (DHS) was granted regulatory authority over chemical facilities regarding facility security, through federal appropriations language.

In 2007, DHS established the Chemical Facility Anti-Terrorism Standards (CFATS) program to, among other things, assess the risk posed by chemical facilities and require high-risk facilities to develop security plans. DHS is then required to review these plans and inspect the facilities to ensure compliance with regulatory requirements. DHS issued final chemical security regulations which captured virtually the same chemicals that DHSES captured pursuant to Section 714(2)(a) and included many of the same activities, except they went further. Additionally, 6 CFR § 27.405 establishes that states are now preempted from issuing any law, regulation or rule which serves as an obstacle to, or frustrates the purpose of, federal regulation of chemical facilities under CFATS. This has posed a problem for DHSES to fully administer the hazardous substance storage facility security program. Furthermore, this has caused a great deal of confusion for the industry.

The primary distinction, however, is in the specific threshold quantities captured under the CFATS regulations. For example, with regard to anhydrous ammonia, CFATS is triggered when a facility stores at least 10,000 pounds. DHSES would like to leverage the work of DHS with the chemical industry to ensure that New York's security needs are being met and potentially focus on lesser quantities and concentrations that may pose a risk to the security of the State. By removing the subdivision 2 requirements, DHSES anticipates a more productive and less adversarial relationship with an already heavily regulated industry. The dynamic and evolving nature of the threat has validated a need to remain flexible in evaluating our critical infrastructure. The proposed amendments would allow DHSES the capability to adapt with the evolving threat while preserving the Division's authority to assess the effectiveness of security and maintaining oversight and reporting of federal, state, local and private sector security programs.

Due to the sensitive nature of this report, any information contained or used in preparation of the report should be considered exempt and not made available pursuant to article six of the public officers law. Without this protection the information held within the report could be used to target a New York State chemical facility.

Budget implications

None known.

Local impact

This proposal would have no known impact on local governments.

Effective date

Immediately.